The Fifth Circuit holds that Missouri sexual abuse of a minor is "crime of violence"
The criminal defendant in United States v. Lara-Martinez, No. 15-41497 (5th Cir. Sept. 6, 2016) was convicted of illegal reentry after previous deportation. He was charged with a sentence enhancement for the “sexual abuse of a minor” sub-definition of “crime of violence” under U.S.S.G. section 2L1.2 cmt. 1(B)(iii) because of a Missouri conviction of sexual misconduct involving a child.
Lara-Martinez asserted that his conduct was not categorically sexual abuse of a minor because, he claimed, the Missouri offense does not require that a minor be involved. He stated this was the case because an of-age peace officer posing as a child suffices for the conviction.
Citing Taylor v. United States, 495 U.S. 575 (1990), as well as Fifth Circuit categorical approach cases, and Mathis v. United States, 136 S.Ct. 2243 (2016), the Court first determined that the modified categorical approach was applicable because the Missouri statute has “multiple alternative elements.” In particular, a defendant can violate the statute by exposing himself to a minor (sections 1 and 2) or by coercing a minor to expose him or herself (section 3). Lara-Martinez’s conviction fell under section 3. For this reason, the Court found his argument unavailing because, while there was a realistic possibility one could violate sections 1 and 2 by exposing oneself to an officer masquerading as a child, the Court held that “it is much more difficult—if not impossible—to imagine a case unfolding like Lara-Martinez urges us to consider: a defendant who was convicted for coercing or inducing an of-age peace officer to actually expose his/her genitals for a defendant’s arousal or gratification.” The Court therefore upheld the sentence enhancement.
Commentary: It is interesting that the Court, citing Mathis, resorted to the modified categorical approach without any analysis of whether a Missouri jury would be required to agree unanimously whether the defendant violated sections 1, 2, or 3. Under Mathis, an argument could be made, and Lara-Martinez’s attorney undoubtedly did argue, that the Court should at least have to look at the charging documents (or generic charging documents, i.e., pattern jury instructions) to determine whether it could narrow the conviction to section 3. If it could not, then Lara-Martinez was correct because, as the Court acknowledged, his conviction statute encompassed conduct against an adult masquerading as a child under sections 1 and 2 which is not "sexual abuse of a minor."